CoCo

Constitutional Code in the Realm of Culture

Sunday, October 17, 2004

Panoptic Pirates

Brazil is calling... The beautiful and warm country where I'll be confound to an internet free zone the next two weeks, not Terry Gilliam's dystopian movie of the same name. Though, who knows where we're heading. I'll be back just in time to see the whole shebang go up in flames November 2nd.

Cons in the panopticon: Anti–globalization and cyber–piracy by Indhu Rajagopal with Nis BojinThis paper examines the paradox of the digital telecommunications revolution that augured the transcendence of big business and big government (Toffler, 1980), but also extended to the World Wide Web the processes of privatization and commodification. Instead of facilitating individuals to design, through interactive technology, their own media and directly express their will (Pool, 1983), the Internet has come to embody a panopticon that extends the reach of corporatists. We discuss the panopticon in the context of the globalizing cyber–technology, and argue that piracy is an anti–globalization movement.

Wednesday, October 13, 2004

Ashcroft: Seek and Hide No More

Attorney-General John Ashcroft must have felt it coming: the same day the U.S. Supreme Court (USC) denied to hear RIAA v. Verizon he announced to upstep the battle against piracy. A battle, which starts to turn into a war, with possibly comparable methods and collateral (civilian) damage as the war on drugs and the war on terrorism.

"The department is prepared to build the strongest, most aggressive legal assault against intellectual-property crime in our nation's history," Attorney General John Ashcroft, who created the task force in March, said at a press conference in Los Angeles on Tuesday afternoon.

Aggressive assaults, that is music to the ears of the RIAA. More music from the report, p. 40, specifically related to today's USC decision:

In civil cases where the constitutionality or viability of importent civil enforcement tools are at issue, the Department of Justice should intervene by submitting a written brief to the court hearing the case, to protect the use of civil enforcement methods in accordance with federal law. In addition to defending the validity of the DMCA's subpoena provision, the Justice Department has shown its commitments to intervene in cases when other intellectual property laws have come under constitutional attack. Therefore, the Department of Justice should closely monitor civil enforcement developments in the law that may reduce the effectiveness of the private, civil enforcement scheme. When such court decisions arise, the Justice Department must identify them an take affirmative steps to correct them. (italics added)

It is will be interesting to see what affirmative steps Ashcroft may take against the "constitutional attack" on intellectual property rights. As in a war, he might launch an aggressive constitutional counter-attack. Curving down the constitutional rights of privacy and the First Amendment a bit.

This article sets forth two main points. First, it tries to explain why peer-to-peer (P2P) networks have led Japan and may lead the United States to choose criminal enforcement against contributory copyright infringement. While criminal enforcement existed in both societies prior to the popularization of P2P networks, it was rare and largely directed at direct infringers. Second, the article predicts that, while Japan and the United States may similarly bring to bear criminal law resources and norms to face the same challenge - contributory copyright infringement using P2P and related technologies - the results will likely to be significantly different. The social and legal contexts suggest that in the U.S. criminalization may buttress and perhaps complement and encourage more civil enforcement. But in Japan, administrative pronouncements and judicial decisions have diminished the usefulness of civil enforcement to rightsholders. As a result, Japanese criminalization may substitute for the development of an effective system of civil remedies to protect intellectual property.

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Later

There is more at Ars Technica, which notes that the report can't be copy-pasted due to security settings. Pretty strange for a public document: it makes it hard to quote and 'caused some extra typing on my side.
A Copyfighter's Musings says to report in greater detail later.
Furdlog points out the "sweeping recommendations"

USC: Seek and Hide

The U.S. Supreme Court has denied to hear RIAA v. Verizon case, for now. A lower court initially decided that service provider Verizon had to provide indentifying information on p2p file-sharers under a DMCA subpoena issued by the recording industry. These subpoenas have no judicial review, and can be used without any proof of copyright infringement. No more procedural barrier of showing that infringement has indeed taken place before identifying information is handed over. This practice generalizes and projects the suspicion of copyright infringement on any p2p-user. File-sharers are pirates, guilty until proven innocent. That was until the DC Circuit Court reversed the ruling of the lower court and decided the subpoenas clashed with First Amendment and privacy rights of Internet users. The Supreme Court has now denied hearing RIAA's appeal to this decision.

After the DC Circuit decision a fresh package of new lawsuits aimed at file-sharers was announced:

"The process by which we identify defendants has changed, but the program has not," RIAA President Cary Sherman said in a press conference to announce the lawsuits. "Our message should be as clear as ever: We can and will continue to bring lawsuits against those who distribute music to millions of strangers."

And indeed the RIAA did: 3,500 and counting. Now at least the "John Does" can continue to seek and hide. Hide behind a fragile anonymity, which is plastered for a while, but continues to be chipped away.

Tuesday, October 12, 2004

A2A: The Culture War Continues

Dan Hunter is on a roll. Just a month after posting his Culture Wars on SSRN, he has extended the theme of decentralized cultural production & copyright. Instead of analyzing Marxist-Lessigism, as he called it, he takes a shot at it himself. Together with F. Gregory Lastowka he has put up Amateur-to-Amateur, again at SSRN.

Here is the abstract:

Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. However our focus on copyright's recent history blinds us to the social information practices which have always existed. In this article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been the driving force behind copyright's expansion. However, all of the functions that copyright industries used to control are undergoing revolutionary decentralization and disintermediation. Different aspects of information technology, notably the digitization of information, widespread computer ownership, the rise of the Internet, and the development of social software, threaten the viability and desirability of centralized control over every one of the content functions. These functions are increasingly being performed by individuals and disorganized, distributed groups. This raises an issue for copyright as the main regulatory force in information practices, because copyright assumes a central control structure that no longer applies to creative content. We examine the normative implications of this shift for our information policy in this new post-copyright era. Most notably we conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.

And from the paper:

The amateur-to-amateur movement in content information practices calls into question copyright's claim to a central role in structuring the information environment. Due to the increasing ease of content creation, selection, and distribution through distributed networks, we are seeing a separate amateur sphere of content production emerging and providing the public benefits that were previously provided by copyright-controlling enterprises. Yet copyright law has essentially disregarded the contributions of amateurs and concentrated instead on creating incentives for the profit-driven information production practices of the traditional entertainment industries.

More accessible than Yochai Benkler, richer in details and foundation than Lessig's latest book, but resonating much of their ideas and themes. A must-read, though, and another fine gallon of fuel on the fire that warms the pinko commie bastard criers.

Thursday, October 07, 2004

ISPs: Don't Notice & Take Down Anyway

The Dutch digital rights organisation Bits of Freedom (BOF) has been doing some research on how Dutch ISPs handle notice and take down orders. The outcome is that seven out of ten providers don't notice that the order provided by BOF involves a public domain text, and take it down anyway without even checking the website or contact the affiliated party. The irony is that the text is from the 19th century Dutch author Multatuli, who's masterpiece Max Havelaar is a poignant novel about an individual's rise against a collective suppression (to put it crudely).

This Dutch study resembles a small 2003 research for the European Commission about codes of conduct in the digital content-related industries, which didn't make it to the final report in question. This research used a part of the also appropriate On Liberty by John Stuart Mill, which sees on freedom of speech.

Notice and take down orders have also been used and misused for combating child porn (and blocking protected speech in the heat of the battle) and by copyright holders essentially using copyright to suppress criticism ( e.g. by The Church of Scientology). More on the U.S. and EU notice and take down schemes in an earlier posting.

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Link to BOF research paperLink to BOF paper presentation slides
Link to On Liberty research

CopyCommunism for Nobel Laureate To Be?

Today the Nobel price for literature was awarded to Austrian writer Elfriede Jelinek. I haven't read any of her books, as with most of the laureates of the past years, Coetzee being a notable exception.The Leiter Reports has a post with a link to her homepage and an article, which sounds like I should start reading her:

"Highly respected abroad for her literary exploration of gender issues, sexuality and violence in society, Jelinek is also controversial in her native Austria for her views on contemporary political issues, such as the Iraq war, anti-Semitism and xenophobia."

And:

"Jelinek retired from public life in 1996 after rightwing politicians from Joerg Haider's Freedom Party (FPOe) used her name in campaigns, denouncing her work as low and immoral art."

Her homepage, with lots of works, carries the following copyright statement

Translation: "The here collected texts are copyright protected and may not be republished or citated with the expressive permission of the author."

Citation falls, of course, under the copyright exemptions, and is generally allowed without authorization of the rightsholder. Maybe the Austrian copyright law has some other view on this. However, for a writer who has been a member of the Austrian Communist Party for several decades, this overly restriction of (intellectual) property seems a bit strange. Though it could be part of some disillusion after falling from the fate. Maybe she could step back to CopyCommunism Light, and try a Creative Commons license.

Private Copying: Not a Right

A new article at the INDICARE site, this time by Natali Helberger:It's not a right, silly!The article analyses the private copying exemption, which has been claimed as a right, but really is not. Maybe it should be, but that's not what's in the European books right now. The European Copyright Directive (EUCD) does not mandate the private copying exemption and leaves its implementation in national laws to the Member States. What's more, the exmption is often restricted by DRMs, which find a backing by the EUCD in article 6 (anti-circumvention provision).

A fast read with a focus on current case law, here's the abstract:

Not all consumers are willing to accept DRMs. This article tells the story of two consumers who were not, and who went before the courts to claim what they thought was their good right - the "right to private copying". It tells the story of their cruel awakening, and why it had to come like this.

Wednesday, October 06, 2004

MPA Recommends European Broadcast Flag

The comments to the Final Report of the European Commission's High Level Working Group on Digital Rights Management (HLG) have been released. The HLG's line up is essentially all industry players, with the lonely exception of the BEUC, the European Consumers organisation. The BEUC's response is fairly critical, as could be expected, since its voice was hardly heard during the meetings nor reflected in the Final Report.

There's an overload of views, so pick for yourself. Some of the Motion Picture Association's (MPA) thoughts are too interesting not to share here, however. First its view of how far the role of DRM may go: "The role of DRM could even extend to facilitating the accommodation of certain copyright exceptions under the right conditions." [p.2, italics added]

So, as far as the MPA goes DRMs may even bring information users a conditional facilitation of exemptions (e.g. private copying, quotation) until now already enjoyed without DRMs. May bring, because there are conditions, and there comes the juice: a European Broadcast Flag scheme.

In the "Conclusions and Recommendations" section the MPA states:

"[T]he security environment needs to improve. This can be accomplished through:

Improved software tamper resistance techniques

A hardware "root of trust" and a trusted computing environment within the PC

Secure home networking to provide interoperability to Consumer Electronics (CE) devices and local content management. DVB (Digital Video Broadcasting -RL) work on the Content Protection and Copy Management system should therefore be supported.

A solution to the "Analog Hole" (see below) "

And there it comes:

"Appropriate measures must be taken to address in particular the (1) unauthorized retransmission of unencrypted digital signals and (2) conversion of protected digital signals to analogue format and back to digital with the result that any content protection enjoyed in the digital space is effectively removed (referred to above as the analogue hole or analogue re-conversion)."

In the original these last recommendations are printed in bold, as if it is not clear what the MPA is talking about:

"Both these gaps in protection are contributing to the severe problem of illicit file sharing of audio-visual works occurring on peer-to-peer file sharing networks. [...] public intervention may be eminently necessary, either to provide for the compliance with any agreed standards addressing content protection or to address the absence of an agreement on any standards at all (i.e. market failure)."

What we got here is failure to communicate: call it by its name, please. The MPA steers for an European Broadcast Flag. A technical protection measure implemented in the hardware of user devices, the PC, included, and publicly mandated if the market fails to provide one.

Interestingly enough today the news broke that nine public interest organisations have questioned the authority of the American public media regulator, the Federal Communications Commission, "to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress." (Link to court case information). In how far the MPA's push will find a more than listening ear remains to be seen, and an eventual implementation on a European level is for a far more distant future. But now the seeds haven been sown it may only be a question of time before the broadcast flag takes root in European soil.

Code: Institutional Values and Design

I overlooked a massive paper by Jay P. Kesan and Rajiv C. Shah, that was published in the Yale Journal of Law & Technology, and posted last week on SSRN: Deconstructing Code.

First the abstract, then some comments:

This Article deconstructs code using case studies and shows that code is not neutral and apolitical but instead embodies the values and motivations of the institutions and actors building it. The term code, as we use it, consists of the hardware and software components of information technologies. Code is increasingly being sought as a regulatory mechanism in conjunction with or as an alternative to law for addressing societal concerns such as crime, privacy, intellectual property protection, and the revitalization of democratic discourse. Our analysis examines how societal institutions, such as universities, firms, consortia, and the open source movement, differentially influence the production of code. Relying on four case studies, we analyze how institutions differ in structure and motivation, and how they are affected by different social, political, economic, and legal influences. We then analyze how these societal institutions, which all approach code creation differently, influence the technical and social characteristics of the code that is developed by them. For example, code developed by a university is likely to contain different values and biases, regarding societal concerns such as privacy, than code developed by a firm. This analysis provides a crucial first step in understanding how society shapes these new technologies. Ultimately, this work may assist policymakers in proactively shaping the development of code to address societal concerns.

I still have to read the paper and just skimmed over the introduction and some parts. I like the focal point of its analysis, which is a question that is partly left unatained by the Code-project I'm working on at the Institute for Information Law: how the (institutional values of the) actual writers of code, the code producers, shape its design and thus its working. My institute's Code-project researches an analogy set forward by the paper: "This Article studies code by analogizing code to law."

I don't think the paper expressively dives into this analogy, but looks more on how instutional values are reflected in the soft- and hardware they bring forth. If this technical code equates to legislative code -Code as Code- is a different question, and tends to be answered negatively by our research project. But its papers are published in a near future. Until then this one, for a different, noteworthy deconstruction of code.

Passports: Going Dutch with a Smile

Renewed my passport today. Always a hassle to get a good photo for it. Usually I don't smile, being not particularly amused by identification documents. This time I did though, it may be my last chance. Under American pressure new guidelines have been adopted that mandate a neutral facial expression. I knew it had already been introduced in othercountries, but the photographer told me we Dutch could keep smiling 'till next year. So I did, and now I'll be entering the U.S. with an immense grin.

No immense grin when I finally applied for the passport: six counties in the Netherlands give a discount of 10 euros on the final fee to those who volunteer to participate in the new Biometric passport, and Amsterdam is not one of them! This discount is part of an experiment with the processing of biometric information -digital photograph and two fingerprints- stored on a chip in the passport. The information is said not to be centrally stored in the Netherlands, but it stays unclear what foreign countries will do with it at border controls.

The biometric passport will be introduced in about a year and my new one will stay valid for four years. So I can keep smiling and keep my biometrics to myself 'till then. Still, I think it's unfair. I want to get that discount and support the decline of my privacy right now!

Monday, October 04, 2004

Business As Usual

The workshop "Business Models for Mobile Music and DRM" is behind me. I don't feel like saying a lot about what took place. I think the title of this posting summarizes it pretty well. Though the "Usual" may be a bit too strong, in the sense that there was a bigger plea for openness a la the iTunes DRM model. However open that is.

Overall it was a pretty good workshop, as that it gave a look at the p2p-DRM phenomenon through the eyes of the industry. There were a lot of presentations of some of the bigger players in the mobile music market, that is music over your telephone. Nokia started off by saying it was all for openness and consumer choice, and a series of case studies by parties like Sony, telcoms O2, Orange and Vodafone finished the day with pretty much the same message: we are all for the consumer and the magic words here are individualisation and personalisation. DRM as an enabler of choice, not restriction.

I'll just give some paraphrasings and quick observations, mostly not mobile music related:

Nokia"There must be as little restrictions as possible, because consumers will make their own conclusion and go to p2p networks. Non-interoperability is not acceptable." Maybe that's why Nokia wants to introduce DRM over the whole content chain: from provider, to end-user and what's in between.

MusicWaveA representative of the French MusicWave started off with presenting some figures on music sales and the impact of piracy over the past years: overturn music sales 28.7 billion (down 15%); value of piracy 58.8 billion. It's the old trick: accounting a downloaded song as a stolen song, and hence a revenue loss. Blurring the physics of the tangible (CDs) with the intangible (download). Lessig has referred to this argumentation in his Free Culture with different numbers, though the comparison is applicable here: "If every download were a lost sale - if every Kazaa "rob[bed] the author of [his] profit" - then industry would have suffered a 100 percent drop in sales last year, not a 7 percent drop."

Some more visions from the MusicWave representative: "Everybody could install software, so at the end of the day we have some trouble there." "The iPod is an intermediary device, proprietary handhelds will be the future...." "DRM is not a blocking system. It is an enabler."

SDCSDC is one of the largest providers of copyright protection measures. Its website advertises their products with quotes like "Scared of the Napster-effect ? Fear no more as SDC introduces copy protection for CD-Audio. [...] you have an effective weapon against profit-loss." & "Tired of losing millions on codecrackers turning your software to freeware? SDC helps you fight software-piracy effectively with CD Cops or Safe Disc." & "With CSS and Macrovision, SDC can now prevent your DVD-Videos from being transfered to VHS or digitally copied. The profit-losing days are over!"

The profit losing days are over indeed! That is, if the CEO of SDC can help it: "It has to be fun! Fun fun fun fun fun, funnnnnnnnnnnn! I don't want to wait for a standard. I want to make money now." He clearly pressed the point that users, ehhmmm, consumers should have a good experience, with lots of FUN! And by the way, 500 songs on your iPod was more than enough for the average consumer.

Lawyer TalkMost off the Richter was a lawyer, who previously worked at BMG and, I believe, a copyright related office of the German government. He envisioned a socialist regime like the former DDR if copyright control was left for a flat-rate remuneration scheme. A dystopian future in which one record company split in sublabels would lead to a downfall in quality and quantity of the music. Hmmmmmm.... I think I can count the major labels that produce the vast array of molog music on one hand.

His proposition was to block illegal form legal markets. To let operators who offer legal service block access to (p2p) service that are illegal. Black and white, with the fine argumentation that operators don't have to worry that they take away consumer's rights, since "what we are blocking away shouldn't be accessed by you in the first place". The lawyer was finely reminded that the basis for his argumentation, copyright law, provides protection of reproduction and not access control. His answer to this continued to be as rhetoric as the future socialist tunes he hears piping from flat-rate remunerration.

And more, and moreMost interesting to me was the presentation of Bill Rosenblatt of DRM Watch. He gave an overview of p2p uses, and how p2p and legal music offerings interact and might co-exist in the future. He also ridiculed California's recent "10 friends" rule for filesharing, which obligates an email address to be attached to the file before disseminating it to more than 10 people (friends or not).

Followed several case studies (SONY, O2, Vodaphone, Orange), that gave some interesting stats on the mobile music market, though were often a presentation of business models with little DRM. Sony's StreamMan looked pretty cool, the pricing (I believe 10/15 Euro for content + an additional 10 Euro for data transport) not so. As some of the paternalistic comments: "We need to educate the consumer about "property" in Intellectual Property." & "We need to protect consumers against law breaking." Sony the great protector. Sony that threw in the towel towards copy protection on CDs in Japan, for now.

Afterwards, walking through Berlin, I created the following playlist on my intermediary, 5000+ song iPod to get back into the German groove:

Saturday, October 02, 2004

Online U.S. Voter Registration from Berlin

I've been in Berlin for the past few days, visiting the first INDICARE workshop: ''Business Models on Mobile Music and DRM''. It was pretty interesting and I'll post on it when I'm back in Amsterdam, tomorrow. Right now I'm sitting in a Dunkin' Donuts easyInternet hybrid at the PotsdamerPlatz. Typing on this German-style keyboard is a real pain. Especially the Y is hard to handle, positioned in the down left corner. They got a QWERTZ-board here.

Behind me sit an American man and woman, registrating votes over the Internet. I saw them posted at a movie house, earlier on the evening. The filled out ballots for Berlin based Americans. Now they surf tens of government sites, from California to Ohio: ''This State is important. Is this one of those soldiers?'' Addresses, fax numbers, State numbers are entered. Redding California gives some problems with its poor website. Triomfantically another woman comes in, waving a registration card in here hand: ''I got someone from Texas!'' That a vote for Texas won't change anything, doesn't make her less enthusiastic.

Right now they are getting into a fight with some woman on speed, speaking Italiano-Russian or something. She's agitated, because the Americans are reading out the voter information for all to here. ''You're not in your house! You set a very bad example for Americans!'' It sure is a though job, saving America from Berlin.